TMI Blog2024 (2) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 90 days from the date of commencement. This Tribunal taking note of the fact that the sole COC Member has passed a Resolution to extend further period of 90 days from the last date of CIRP dated 10.05.2023, in view of the categorical and candid averment that for a better negotiation , evaluation and discussion on the Resolution Plan received from the Resolution Applicant and submission of the same to the Adjudicating Authority/Tribunal the Interim Resolution Professional has proposed to extend the CIRP period for a further period of 90 days from the date of approval of the instant IA, and considering the totality of the entire conspectus of the facts and circumstances surrounding the instant case, this Tribunal comes to an inevitable and irresistible conclusion that the Adjudicating Authority/Tribunal had committed an error in not granting the exclusion for the period from 09.05.2023 to 27.07.2023 viz. the period spent in pursuing the IA (IB)1235/CHE/2023, the exclusion period would have enabled the Petitioner/Appellant to pursue the Expression of Interest received and made efforts to revive the Corporate Debtor through a Resolution Plan and in furtherance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Assailing the correctness, validity, propriety and legality of the impugned order dated 27.07.2023 in IA (IBC)/1235(CHE)/2023 in CP (IB)/9(CHE)/2022 passed by the Adjudicating Authority/NCLT, Spl Bench (Court I), Chennai, the Learned counsel for the Appellant/Petitioner submits that the Appellant is a Resolution Professional appointed in Corporate Insolvency Resolution Process of Vardharaja Foods Pvt Ltd ( Corporate Debtor ) whose CIRP was admitted by an order, dated 19.11.2022 in CP (IB)/9/(CHE)/2022 4. According to the Learned counsel for the Appellant, the Appellant in the instant Appeal only challenges the impugned directions in the order dated 27.07.2023 passed by the Adjudicating Authority/Tribunal in IA (IBC)/1235(CHE)/2023 in CP (IB)/9(CHE)/2022 by which the CIRP extension of 90 days was calculated Retrospectively from 10.05.2023 rendering the very extension practically an infructuous one. 5. The Learned counsel for the Appellant points out that the Adjudicating Authority/Tribunal was not correct in granting an extension of CIRP for a period of 90 days from 10.05.2023 i.e. Last date of CIRP. Also that the exclusion of the period from 09.05.2023 viz. the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic plea that the Extension of CIRP application, filed by the Petitioner/Appellant had specifically sought a relief of extension from the date of disposal and to exclude the period of pendency and in reality, where the Resolution Professional was informed that the IA (IBC)/1235(CHE)/2023 in CP (IB)/9(CHE)/2022 was allowed. Further, the Resolution Professional, Bona fide and reasonably was under the notion/belief that all the reliefs were allowed in accordance with the Hon ble Supreme Court Decision. 10. It is the stand of the Appellant that the Resolution Professional had no actual or constructive knowledge of the Retrospective Calculation , on 27.07.2023, until the order was uploaded on 11.08.2023. 11. The Learned counsel for the Appellant refers to the judgement of the Hon ble Supreme Court in Committee of Creditors of Essar Steel V Satish Kumar Gupta reported in (2020) 8 SCC at Page 531 at Spl Page 626 and 627 and 628wherein at para 124, and 127 it is observed as under:- 124. Given the fact that timely resolution of stressed assets is a key factor in the successful working of the Code, the only real argument against the amendment is that the time taken in legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and/or the Appellate Tribunal itself, it may be open in such cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days. Likewise, even under the newly added proviso to Section 12, if by reason of all the aforesaid factors the grace period of 90 days from the date of commencement of the Amending Act of 2019 is exceeded, there again a discretion can be exercised by the Adjudicating Authority and/or Appellate Tribunal to further extend time keeping the aforesaid parameters in mind. It is only in such exceptional cases that time can be extended, the general rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation. and points out that the period of pendency of the IA (IBC)1235(CHE/2023 in CP(IB)/9/(CHE)/2022 for CIRP extension ought to be excluded. 12. Likewise, it is submitted on behalf of the appellant that the period of pendency of the instant A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 Date of issue of final list of prospective resolution applicants 08.06.2023 Date of issue of information memorandum, evaluation matrix and request for resolution plans to prospective resolution applicants 29.05.2023 Last date for submission of resolution plan by the Resolution Applicants 30.06.2023 19. According to the Learned Counsel for the Appellant/Petitioner, in terms of the timeline specified Supra, the last for submission of Resolution Plan by the Resolution Applicant stood on 30.06.2023. Also an Expression of Interest from a few of the prospective Resolution Applicants was received. 20. According to the Appellant/Petitioner, the initial period of 180 days had lapsed on 10.05.2023 and further that the Members of the Committee of Creditors and Resolution Professional shall be left with no time, to proceed with any of the procedure mentioned in the said Form G including to evaluate the Resolution Plan received from the Resolution Applicant. 21. It is represented on behalf of the Appellant/Petitioner that for a better neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the term exclusion is an example of leaving something or keeping out, eliminate, facing out, rule out etc. In fact, the exclusion of particular period by an Adjudicating Authority / Tribunal using its discretionary powers under Rule 11 of NCLT Rules, 2016 and relying upon the Regulation 40C of the Regulations to keep the Company a Going Concern was held to be a proper, although it was dissented by 42% of the Committee of Creditors Members as per decision in India Bulls Housing Finance Ltd. V. Sandeep Chandna (reported in 2022) 141 Taxmann.com.552 NCLAT, New Delhi. 27. When an extension for 90 days to complete the CIRP is granted by an Adjudicating Authority then such period will be counted from the date on which the Adjudicating Authority/Tribunal passed the order for such extension. 28. On a careful meticulous consideration of contentions advanced on behalf of the Appellant/Petitioner, this Tribunal taking note of the fact that the sole COC Member has passed a Resolution to extend further period of 90 days from the last date of CIRP dated 10.05.2023, in view of the categorical and candid averment that for a better negotiation , evaluation and discussion on the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
